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TMI Blog2014 (2) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... ity. But when an allegation of criminal liability is fixed, then there must be a charge to that effect and only when that charge is made, the question of Enquiry Officer going into the charges will arise. Under Section 7(2)(c) of the Payment of Wages Act, deductions from the wages of an employed person can be made for loss of goods expressly entrusted to an employed person for custody or where such loss is directly attributable to his neglect or default. But there is nothing wrong on the Management holding the petitioner responsible for the loss but before making any deduction towards loss, the payment of Wages Act also provides procedure under Section 10(1)(a), wherein the employee must be given an opportunity of showing cause against the deduction or otherwise than in accordance with such procedure as may be prescribed for making such deduction - no exception can be taken with reference to the petitioner moving the Police station with a criminal complaint. For his causing notice issued through his trade union can never be said to be a misconduct. In so far as the loss of material is concerned, it can be only fixed by civil liability as there was no allegation of theft under a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attend the work. On 26.03.2007, the said Anbalagan called him and asked him to give a written complaint to the Managing Trustee of the respondent. Accordingly, he gave a written complaint addressed to the Managing Trustee. On 27.03.2007, Anbalagan called him to his room and forced him to sign a letter without disclosing the contents of the letter. But orally he was informed that he should pay a sum of Rs.16,200/- being the cost of the missing coils. When the petitioner asked him how he was held liable, he had merely stated that he was personally responsible for the loss. No enquiry was conducted and no efforts were taken to trace the missing coils which had happened when he was on leave. Therefore, the petitioner was forced to make a complaint to the Police on 27.03.2007 about the theft of the coils. He also brought the matter to the notice of the Trade Union. The Trade Union also wrote a letter to the second respondent Management on 03.04.2007. 5. In the meanwhile, the petitioner was placed under suspension on 30.04.2007 and a domestic enquiry was conducted by an Advocate from outside. The petitioner was prevented from having the assistance of a person of his choice to help him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irresponsible allegations about the Management. In their letter, it was stated that the letter given by the petitioner was obtained by force and therefore, they sought for return of the letter. On receipt of the complaint, a Sub-Inspector and a Constable from the Korattur Police Station came to the College and made enquiries about the missing coils. During the enquiry, the petitioner had stated that he suspected the hand of the Management. The investigation by the Police created a sensation in the college. The petitioner alone was responsible for the missing of coils and hence, after due show cause notice and enquiry, the petitioner was dismissed form service. It was stated that the possibility of the petitioner himself taking away the materials cannot be ruled out and therefore, they have lost confidence in the petitioner. It was further stated that the domestic enquiry conducted by them was fair and proper. 10. The Labour Court upon the materials placed before it did not frame any separate issue regarding the validity of the domestic enquiry. But on the contrary, it came to the conclusion since entrustment of the coils to the petitioner was not in doubt and was admitted by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the loss suffered by the Management, he should remit a sum of Rs.16,200/- immediately to the Trust account. In the first order passed by the second respondent, the second respondent had merely attempted to recover the amounts from the petitioner holding him vicariously liable for the loss. There was no allegation of any misconduct or ulterior motive on his part on the missing of materials. It is only when the petitioner went before the Police and sent a letter through his trade Union, a Show Cause Notice was given to him on 30.04.2007. In the show cause notice, once again the College Management after holding him responsible for the loss of the coils took exception to the petitioner giving a statement to the Police and also causing a notice issued through his Union. His conduct in spreading false news about the Management and giving a false complaint to the Police and to his Union was reprehensible and for that reason, he was asked to explain within 48 hours as to why disciplinary action should not be taken against him. He was also placed under suspension by the said order. 14. Subsequently, the Management had appointed an Advocate to conduct the enquiry. The petitioner had stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The petitioner himself was responsible for the letter written by the Trade Union. It was done only to shift the blame on the Management. Merely because the petitioner was a member of the Union, no allegations was made. Once he was accused of theft and the charges were proved, it is immaterial as to which Union he belongs. 17. In the Enquiry report dated 02.08.2007, marked as Ex.M12 before the Labour Court, the Enquiry Officer answered the four issues as follows:- The Enquiry officer had stated that since the 8 coil wires which were lost was entrusted to the petitioner, he alone was responsible. Since there was entrustment and accountability on the part of the petitioner, he cannot shirk his responsibility. The petitioner gave a letter only on 26.03.2007 and thereafter, went to the Police Station and that act was beyond his limits. The allegation that he was suspecting the Management was an irresponsible Act and the Police coming to the campus had created a sensation and that he was not being victimised because of his affiliation in the Union. Therefore, the allegations of the Management against the petitioner were proved. 18. First of all, in the present case, there was only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sponsible for making good the loss, it is not clear as to how the Labour Court can find the petitioner guilty of theft. On the other hand, the Labour Court did not even refer to any of the documents marked before it and relied upon the submissions made during the proceedings before it. Therefore, the submission of the learned counsel for the second respondent, that it is unnecessary to frame any specific charge sheet, cannot be accepted. There is no gainsaying that whatever the Management want to accuse him of, the worker had understood and therefore, the Court cannot take exception for not framing a chargesheet. 21. On the other hand, it has been held by the Supreme Court in many cases that a person who is accused of a misconduct must clearly know the charges levelled against him. It is only when a person is made known to the charges, he will be able to submit his explanation and upon the said explanation, if it is not satisfactory, the Management can hold an enquiry. On the other hand, right from the beginning of the proceedings, the allegation of the Management against the petitioner was that he was responsible for the loss and that he should make good the loss. A charge of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the materials. I am impelled to think that such a view that the petitioner is responsible for the disappearance of the materials is quite possible and it would not be for this Court to substitute any other inference and an inference that has to be inevitably drawn has been drawn. Obviously a logical as also quite a reasonable conclusion has been reached holding the petitioner responsible. The finding of the Enquiry Officer in the domestic enquiry does not call for any interference for the reason that the enquiry has been conducted fairly and properly and conclusion just and reasonable in the circumstances has been reached. 23. While the findings of the Labour Court in the first portion viz., that any person can set the criminal law in motion, the findings thereafter rendered by the Labour Court was not only unwarranted and was not borne out of the materials on records with which it has to render findings in terms of proviso to Section 11-A of the I.D.Act. 24. The Supreme Court vide its decision in Sawai Singh v. State of Rajasthan reported in (1986) 3 SCC 454 has held that charge must be specific and not vague. Where the charges framed against the delinquent officer are vag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agement was not correct in stating that it was not necessary to frame a specific charge regarding theft and that the petitioner had understood the same. 26. First of all, there is no specific charge of theft against the petitioner and consequently, the Enquiry Officer had not found the petitioner guilty of theft of the coils. It was that enquiry report which was accepted by the Management which led to his dismissal. But it was the Labour Court which rendered a finding of theft which was not even the case of parties before the Labour Court. The Labour Court had made a special pleading on the basis of the arguments advanced by the counsel for the Management. The provocation of the management as can be seen from the records is largely for his inviting the police due to his complaint made to them and also his opinion regarding the suspicion of Management's role on the same and also the notice issued by the Trade Union. 27. The Labour Court itself found that any person can set the criminal law in motion and if a person who is entrusted with property of the employer and when he is made responsible for its loss, certainly if he suspects that the property has been stolen, then normal c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h a criminal complaint. For his causing notice issued through his trade union can never be said to be a misconduct. In so far as the loss of material is concerned, it can be only fixed by civil liability as there was no allegation of theft under any part of the proceedings. Since no enquriy was held by giving a notice and on that score the finding rendered by the Labour Court in this regard are perverse and the impugned Award is liable to be set aside. 31. Though in the pleadings before the Labour Court, they had stated that they lost confidence in the petitioner, the loss of confidence cannot be easily inferred in the matter of reinstatement. The Supreme Court had an occasion to consider such a plea made by the Management in L.Michael v. Johnson Pumps Ltd., reported in (1975) 1 SCC 574. In paragraphs 19 and 20, it held as follows:- 19.The above study of the chain of rulings brings out the futility of the contention that subsequent to Murugan Mills' case2 colourable exercise of power has lost validity and loss of confidence has gained ground. The law is simply this: The Tribunal has the power and, indeed, the duty to X-ray the order and discover its true nature, if the object ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onate to the gravity of misconduct so as to disturb the conscience of the court, or the existence of any mitigating circumstances which require the reduction of the sentence, or the past conduct of the workman which may persuade the Labour Court to reduce the punishment. In the absence of any such factor existing, the Labour Court cannot by way of sympathy alone exercise the power under Section 11-A of the Act and reduce the punishment. As noticed hereinabove at least in two of the cases cited before us i.e. Orissa Cement Ltd.5 and New Shorrock Mills6 this Court held: Punishment of dismissal for using of abusive language cannot be held to be disproportionate. In this case all the forums below have held that the language used by the workman was filthy. We too are of the opinion that the language used by the workman is such that it cannot be tolerated by any civilised society. Use of such abusive language against a superior officer, that too not once but twice, in the presence of his subordinates cannot be termed to be an indiscipline calling for lesser punishment in the absence of any extenuating factor referred to hereinabove. 33. But that case was rendered in a situation wher ..... X X X X Extracts X X X X X X X X Extracts X X X X
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